| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Tosovic v Sigma Air Conditioning Pty Ltd [2022] NSWPIC 92 |
| APPLICANT: | Dusan Tosovic |
| RESPONDENT: | Sigma Air Conditioning Pty Ltd |
| MEMBER: | 3 March 2022 |
| DATE OF DECISION: | Paul Sweeney |
| CATCHWORDS: | WORKERS COMPENSATION - Design engineer injured while ice skating with children while on assignment for his employer in Vienna; ComCare v PVYW considered and applied; finding that the evidence established that the activity was induced or encouraged by employer; Held- award for the worker for total and partial incapacity during first and second entitlement periods and for permanent impairment compensation. |
| DETERMINATIONS MADE: | 1. The applicant suffered injury in the course of his employment namely a contrecoup injury to his frontal lobe when he fell while ice skating on 25 January 2017. 2. The applicant’s employment was a substantial contributing factor to the injury. 3. As result of the injury the applicant was totally incapacitated until 16 July 2017 and thereafter was partially incapacitated or had a current earning capacity to 24 July 2019. 4. At all material times the applicant’s pre-injury average weekly earnings was $2,389.11 per week. 5. From 8 January 2018, the applicant was able to earn the sum of $1,538.46 per week in some suitable employment. 6. Respondent to pay the applicant compensation pursuant to s 36 at the rate of $2,269.65 per week from 25 January 2017 to 26 April 2017, and pursuant to s 37 at the rate of $1,911.29 per week from 27 April 2017 to 16 July 2017 and at the rate of $372.79 per week from 7. Respondent to pay the applicant’s medical and hospital expenses in accordance with s 60. 8. Respondent to pay the applicant the sum of $49,590 pursuant to s 66 for 20% WPI in respect of injury on 25 January 2017. 9. Respondent to have credits for payments of compensation made to the applicant. 10. Liberty to apply in respect of the above calculations. |
STATEMENT OF REASONS
BACKGROUND
Sigma Air Conditioning Pty Ltd (the respondent) design air conditioning units for train carriages manufactured in Australia and internationally. Dusan Tosovic (the applicant) was employed by the company as a project design manager.
In addition to the design of air conditioning units, the applicant’s role involved overseeing the manufacturing of the units, their installation in train carriages, and their commissioning following a site acceptance test (SAT). In order to carry out these functions it was necessary for him to travel to foreign cities.
On 21 January 2017, the applicant arrived in Vienna, Austria, to oversee the testing of air conditioning units installed in rail carriages manufactured by the respondent’s client Bombardier in Canada. The testing of the carriage and the air conditioning unit was to be carried out at a specialised climate rail testing facility in Vienna known as Rail Tec Arsenal (RTA).
As the transportation of the Bombardier carriage from Canada to Vienna was delayed, the applicant arranged for his wife…
Keep reading for free
Create a free CaseChat account to read Tosovic v Sigma Air Conditioning Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2022] NSWPIC 92
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the injury sustained by Tosovic during his recreational activity in Vienna arose out of or in the course of his employment with Sigma Air Conditioning. The court had to consider whether the recreational activity was sufficiently connected to the employment to warrant compensation. The case hinged on the interpretation of the phrase "in the course of employment" and whether the recreational activity was induced or encouraged by the employer. The court referred to the precedent set in ComCare v PVYW to assist in determining the connection between the employment and the injury.
The court found that the evidence established that the recreational activity was indeed induced or encouraged by the employer. It determined that the nature of the assignment and the circumstances under which Tosovic was participating in the recreational activity with his children were sufficient to constitute the activity as being in the course of employment. The court accepted that the employer's presence and the context of the overseas assignment created an environment that encouraged such activities. Consequently, the court ruled in favour of Tosovic and awarded him compensation for total and partial incapacity during the first and second entitlement periods, as well as for permanent impairment compensation.
The final orders of the court mandated that Sigma Air Conditioning and ComCare were liable for the compensation awarded to Tosovic. The decision underscored the importance of the employer's role in creating an environment that may encourage recreational activities during overseas assignments and clarified the scope of compensation entitlements in such circumstances.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.